1

United States Court of Appeals,

Fifth Circuit.

No. 93-7712.

John Buford IRVING, III, Petitioner-Appellant,

v.

Edward HARGETT, Superintendent, Mississippi State Penitentiary,

et al., Respondents-Appellees.

July 20, 1995.

Appeal from the United States District Court for the Northern

District of Mississippi.

Before DAVIS, SMITH and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

Irving appeals the district court's dismissal of his § 2254

petition as a successive writ. We affirm.

I.

The facts of this case are set out in detail in Irving v.

State, 361 So.2d 1360, 1362-63 (Miss.1978) ("Irving I "), cert.

denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979), and

Irving v. State, 498 So.2d 305, 308 (Miss.1986) ("Irving III "),

cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987).

In brief, Irving and his co-defendant, Keith Givhan, robbed and

killed Grambrell Ray on March 3, 1976, in Ray's grocery store.

Ray's wife testified that she saw Irving with a shotgun immediately

following the shooting. Irving later made a statement to

authorities that he had shot Ray after Ray had advanced toward him.

Irving was convicted of capital murder and sentenced to death in a

separate sentencing proceeding. At the sentencing hearing, Irving
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testified that Givhan actually had fired the fatal shot.

The Mississippi Supreme Court upheld the conviction and

sentence on direct appeal. Irving I, supra. Following a denial by

the Mississippi Supreme Court for an application to file a writ of

error coram nobis, Irving v. State, No. 03-DP-04 (May 23, 1979),

petitioner filed his first petition for federal habeas relief.

In July 1981, the district court granted relief as to the

sentencing phase of Irving's original trial but denied relief as to

the guilt phase. Irving v. Hargett, 518 F.Supp. 1127

(N.D.Miss.1981). The court determined that Irving's attorney, Mr.

McClellan, who also represented Irving's co-defendant Givhan,

conducted Irving's defense under an unconstitutional conflict of

interest. The court, however, specifically found that only the

sentencing phase of the proceeding was affected and not the guilt

phase. Id. at 1144-45. Mr. McClellan, who acted as both trial

counsel and habeas counsel, did not appeal the district court's

rejection of Irving's § 2254 attack on his conviction, apparently

despite the request of petitioner.

Irving was resentenced in November 1981. Again, the jury

returned a death sentence, and the sentence was again upheld on

direct appeal by the Mississippi Supreme Court. Irving v. State,

441 So.2d 846 (Miss.1983) ("Irving II "), cert. denied, 470 U.S.

1059, 105 S.Ct. 1774, 84 L.Ed.2d 834 (1985). While the direct

appeal was pending, petitioner filed a pro se petition for federal

habeas relief, again challenging his 1976 conviction. The district

court again denied relief, on the same grounds stated in its
 

1These are referred to as claims two and five in the

district court's opinion. 

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earlier ruling. Irving v. Lucas, No. WC 82-139-WK-P (N.D.Miss.

Nov. 29, 1982). Petitioner filed a pro se notice of appeal to this

court and moved for the appointment of counsel. This court denied

the appointment of counsel. Petitioner then moved to dismiss the

appeal, which this court granted. Following a failed attempt at

state collateral relief, Irving III, supra, petitioner again sought

relief from the U.S. Supreme Court. This petition was also denied.

Irving v. Mississippi, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d

826 (1987).

Irving filed the instant petition in July 1987. While this

case was under consideration by the district court, Irving filed

another petition for relief with the Mississippi Supreme Court.

That Court vacated Irving's death sentence and remanded for a new

sentencing hearing. Irving v. State, 618 So.2d 58 (Miss.1992)

("Irving IV "). The federal district court's opinion in this case

was filed in October 1993. The district court dismissed the claims

related to the 1982 sentencing phase as moot and dismissed the

claims relating to the 1976 conviction as either successive or an

abuse of the writ. This appeal followed.

II.

Petitioner challenges the trial court's rejection of his

ineffective assistance and inadmissible confession claims, both of

which are predicated on counsel's conflict of interest.1 Irving

presented these identical claims in his first federal habeas
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petition in 1981 and again in his second federal habeas petition in

1982. The district court considered and rejected those claims on

the merits in both habeas proceedings. As discussed above,

petitioner did not appeal the district court's rejection of his §

2254 attack on his conviction in either of the earlier habeas

proceedings.

The district court therefore dismissed these two claims as

successive under Rule 9(b) of the Rules Governing § 2254 Cases,

which states:

(b) Successive motions. A second or successive petition may

be dismissed if the judge finds that it fails to allege new

and different grounds for relief and the prior determination

was on the merits or, if new and different grounds are

alleged, the judge finds that the failure of the movant to

assert those grounds in a prior petition constituted an abuse

of the writ.

Rules Governing § 2254 Cases, Rule 9(b), 28 U.S.C. foll. § 2254.

The district court also found that petitioner's conduct offended

the finality concept as articulated in McCleskey v. Zant, 499 U.S.

467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

By its terms, McCleskey addresses the type of writ abuse that

"defines the circumstances in which federal courts decline to

entertain a claim presented for the first time in a second or

subsequent petition for a writ of habeas corpus." Id. at 470, 111

S.Ct. at 1457. Irving did not raise claims two and five for the

first time in the instant petition; rather, he is raising these

precise issues for the third time. Thus, arguably, McCleskey's

standard, with its cause and prejudice and miscarriage of justice

exceptions, see id. at 493-94, 111 S.Ct. at 1469-70, is too
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generous to the petitioner. But even if we apply the McCleskey

standard for "cause" to determine whether Irving's successive writ

can be entertained, Irving cannot prevail.

 Absent a showing of cause, then, Irving was bound to assert

these claims in an appeal of his first federal habeas petition,

rather than seek to relitigate the same claims in a subsequent

petition. See Hamilton v. McCotter, 772 F.2d 171, 178 n. 12 (5th

Cir.1985). Petitioner argues that his attorney's conflict of

interest constitutes cause for his failure to perfect an appeal

from the district court's original rejection of these claims in his

first federal habeas proceedings. He asserts that Mr. McClellan,

the attorney who represented him in his first federal habeas

proceedings, is the same attorney who was found to have a conflict

of interest at the original trial. Petitioner argues that we

therefore should infer that counsel's failure to file the appeal

was a product of this same conflict.

Even if we draw the requested inference, petitioner's

argument fails. In a federal habeas petition, we evaluate a claim

that attorney error constitutes cause for such a default as a

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), ineffective assistance of counsel claim. Murray v.

Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397

(1986). The Supreme Court, however, has made it clear that a

convicted defendant has no Sixth Amendment right to counsel in

post-conviction habeas proceedings. See Pennsylvania v. Finley,

481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987).
 

2Petitioner does not argue McCleskey's "fundamental

miscarriage of justice" exception. 

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Because a petitioner does not have a constitutional right to

counsel in post-conviction habeas proceedings, it follows that a

petitioner cannot claim ineffective assistance of counsel in such

proceedings. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct.

2546, 2566, 115 L.Ed.2d 640 (1991). Thus, error or misconduct by

Irving's counsel cannot establish cause for his failure to appeal

the rejection of these claims in his first federal habeas

proceedings. See Johnson v. Hargett, 978 F.2d 855, 859 (5th

Cir.1992) ("[B]ecause there is no constitutional right to counsel

in federal habeas, under McCleskey, no error by counsel in a habeas

proceeding can constitute cause."), cert. denied, --- U.S. ----,

113 S.Ct. 1652, 123 L.Ed.2d 272 (1993).2

Petitioner's claim that cause in this instance stems from a

conflict of interest rather than attorney incompetence does not

alter this conclusion. The Court's discussion in Strickland itself

makes clear that both types of claims concern a violation of the

defendant's Sixth Amendment right to effective assistance of

counsel. See Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. See

also Beets v. Collins, 986 F.2d 1478, 1483 (5th Cir.), reh'g

granted, 998 F.2d 253 (5th Cir.1993). Thus, a conflict of interest

claim is properly analyzed under Strickland, although it is easier

for a petitioner to establish prejudice if a conflict of interest

is found to have existed. See Strickland, 466 U.S. at 692, 104

S.Ct. at 2067.
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III.

Because the district court correctly rejected, as successive,

the two claims at issue here, we AFFIRM.

AFFIRMED.